IN RE IVY GARDUNO, pet-ap, v. FRANKLIN VALDEZ, res-res

3757-3758. IN RE IVY GARDUNO, pet-ap, v. FRANKLIN VALDEZ, res-res — Plaine & Katz, LLP, Kew Gardens (Joshua R. Katz of counsel), for ap — Treuhaft & Zakarin, LLP, New York (Miriam Zakarin of counsel), for res — Order, Family Court, New York County (Adetokunbo O. Fasanaya, J.), entered on or about October 13, 2016, which, to the extent appealed from, granted respondent-ex-husband's objections to a modification of an earlier support order (the modified order) and remanded the matter for recalculation by the Support Magistrate, unanimously reversed, on the law and the facts, without costs, the objections denied, and the modified order reinstated. Appeal from order, Family Court, New York County (Karen D. Kolomechuk, Support Magistrate), entered on or about November 15, 2016, issued upon the aforementioned remand, unanimously dismissed, without costs, as academic.

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3757-3758. IN RE IVY GARDUNO, pet-ap, v. FRANKLIN VALDEZ, res-res — Plaine & Katz, LLP, Kew Gardens (Joshua R. Katz of counsel), for ap — Treuhaft & Zakarin, LLP, New York (Miriam Zakarin of counsel), for res — Order, Family Court, New York County (Adetokunbo O. Fasanaya, J.), entered on or about October 13, 2016, which, to the extent appealed from, granted respondent-ex-husband’s objections to a modification of an earlier support order (the modified order) and remanded the matter for recalculation by the Support Magistrate, unanimously reversed, on the law and the facts, without costs, the objections denied, and the modified order reinstated. Appeal from order, Family Court, New York County (Karen D. Kolomechuk, Support Magistrate), entered on or about November 15, 2016, issued upon the aforementioned remand, unanimously dismissed, without costs, as academic.

The modified order was consistent with the application of the statutory formula followed in Matter of Cassano v. Cassano (85 NY2d 649, 651 [1995], citing Family Ct Act §413; Domestic Relations Law §240]), and the Support Magistrate did not improvidently exercise her discretion in issuing it. The Support Magistrate properly calculated the husband’s 2015 salary as $126,160.15, which was the salary the husband testified to at the support hearing and the amount of his gross income as reflected on his 2015 W-2. The husband’s voluntarily deferred income in the form of his 401(k) contributions was properly included in his income (Family Ct Act §413(1)(b)(5)(iii); see also Gilbert v. Gilbert, 32 AD3d 414, 416 [2d Dept 2006]).

IN RE IVY GARDUNO, pet-ap, v. FRANKLIN VALDEZ, res-res

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